The Fraser Institute has previously behaved as the very worst kind of libertarian think-tank: the kind that takes money from tobacco companies and oil companies and publishes disingenuous, ideologically-driven material on tobacco regulation and climate change.

Somewhat surprisingly, the Index explicitly sets its sights beyond the "economic freedom" (essentially a measure of the lighthandedness of regulation by elected governments) that usually constitutes the purview of such organisations.

Its authors do mutter some incantations about how democracy does not equate to freedom (and hence they won't factor it into their index), and their index score combines "economic" and "personal" freedoms, but they also say their paper "attempts to devise a broader measure of human liberty that also includes indicators of civil and other liberties."

I know, right? Civil liberties as a key measure of freedom! Groundbreaking stuff!

We have tried to capture the degree to which people are free to enjoy the major civil liberties—freedom of speech, religion, and association and assembly—in each country in our survey. In addition, we include indicators of crime and violence, freedom of movement, and legal discrimination against homosexuals. We also include six variables pertaining to women’s freedom that are found in various categories of the index.

I'll leave an assessment of how well they've chosen and justified their data to people more expert than me, but in intent at least, this is more than a Heritage Foundation-style economic freedom index. It probably does say things about New Zealand that should make us proud. If you'd like to feel even more smug, feel free to read Crooks and Liars' article on the subject.

One of my Facebook friends was having none of it: "Well." he wrote. "The most-free country I know of, or have ever experienced, is America."

Unfortunately, no one seems able to make that case empirically -- and morally, in the week that Aaron Swartz died, it seems simply absurd.

Swartz was a brilliant American individual: at the age of 14 he was part of the working group that created the original RSS spec. Later he was a co-founder of Reddit and of the online group Demand Progress and worked with Avaaz to defeat the overweening Stop Online Piracy Act (SOPA). The reach of his advocacy was prodigious: protests about SOPA are pretty much the only political speech my older son has ever uttered.

But the last year and a half of Swartz's life was dominated by federal felony charges resulting from his accessing the JSTOR archive of academic articles. Professor Lawrence Lessig's Prosecutor as bully explains the persecution that Swartz suffered, and the absurdity of the 35-year prison sentence he faced.

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash ofACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Alex Stamos, who would have been the expert witness in Swartz' trial, put the case against the federal prosecution even more strongly:

In short, Aaron Swartz was not the super hacker breathlessly described in the Government’s indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public. He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.

As danah boyd notes, Swartz could be fractious: "a cranky bastard and a manic savant". He suffered from depression and no one seems in any doubt that that was a factor in his suicide. But everyone, family, friends, professional coleagues, seems equally sure that this insane prosecution -- based on an interpretation of the law that would ensnare literally millions of Americans if the authorities so chose -- was also a cause of his death. It's also very hard to see it as other than retribution for his political activism.

A country that permits and commits this kind of of retribution against political activists doesn't get to top any league tables for freedom. (Some of you will regard, with some justification, the original charges against the Urewera activists here as a similar case, but I think there are some significant differences both in the nature of the alleged offences and, more profoundly, in the handling of prosecutorial decisions.)

The excesses of prosecutorial discretion have, of course, severely distorted other areas of American public life in recent decades, especially in combination with the judicial gimmickry of mandatory minimum sentencing.

"The Government relies on enforcement agencies such as police to make appropriate decisions on how to charge someone for their offending, and the judiciary to make appropriate sentencing decisions based on the circumstances of individual cases."

The fact is that prosecutorial discretion -- which in the case of drugs often means the inconsistent and arbitrary application of the law -- is the thing that keeps prohibition viable. If the law was fully and equally applied, it would not be viable. It's selective prosecution that allows politicians like Collins to insist there is no problem.

We used to be like this with prostitution, which was tacitly tolerated except when police and prosecutors decided it wasn't. That had many perverse effects. We finally bit the bullet and came up with a law that actually meant what it said. I don't expect that we'll do that same with drugs in the near future -- even though the perverse effects of the law stare us in the face -- but we should resist it when politicians serve their own interests by informing us there is not even a debate to be had, if for no other reason than to maintain our good reputation.

48 responses to this post

Really, dysfunctional countries and ungoverned areas like Zimbabwe or Somalia should be at the top of propertarians' 'freedom' lists. You can do anything you like in those places, subject to a small retainer being paid to appropriate cops and warlords.

The fact is that prosecutorial discretion – which in the case of drugs often means the inconsistent and arbitrary application of the law – is the thing that keeps prohibition viable. If the law was fully and equally applied, it would not be viable. It’s selective prosecution that allows politicians like Collins to insist there is no problem.

Also, would be fair to say that if it was fully and equally applied some of the folks Collins worked with before she entered Parliament might have had considerable difficulty getting a practising certificate? I don't know, and its not really any of my business but I can't help wondering if some of my acquaintances would have had *cough* a slightly different experience of getting pinched with naughty baccy or a skin-full if they weren't articulate, white university students.

I don’t know, and its not really any of my business but I can’t help wondering if some of my acquaintances would have had *cough* a slightly different experience of getting pinched with naughty baccy or a skin-full if they weren’t articulate, white university students.

Having laws that allow police and prosecutors to use "their judgement" and apply the law to those they deem "bad guys" is a very difficult situation. The potential for abuse is high, yet the ability for police to apply a little used law to get someone off the streets for either their own good or the good of others can be a good thing.

The stories of bad cops are easily found. The stories of good cops often never surface.

I don't think it's a reasonable political excuse to not develop better laws but I just don't know that I would do away with all police and prosecutorial leeway.

To me a part of this equation is having a robust, intelligent and active press. The public needs to know when the balance is wrong and also when it is right.

Also, would be fair to say that if it was fully and equally applied some of the folks Collins worked with before she entered Parliament might have had considerable difficulty getting a practising certificate?

And the answer to this fair question is that it probably wouldn't have made a difference. A drug possession conviction will not prevent you from being admitted as a lawyer.

I couldn't help wondering if even the slowest politician struggles reconciling this story with the facile cut and paste rubbish from this story just a week later. It seems to me that people hugging each other on MDMA is far more preferable to

... violent seizures and hallucinations in people thought to have taken pills known as "red rockets"... ....Some users were so aggressive that they required sedation...

The other half of this story for me is about publication of scientific literature. Open access publication of science is starting to change the landscape but essentially the science community has been held hostage by major publishing houses for several decades now.

It is no easy or cheap task publishing scientific papers. Journals have/had to pay copy editors, physical printing presses, administration costs etc. They had to maintain databases of editors and reviewers, none of which is free. Some journals ran on cost basis, authors were charged the lowest possible page fees and libraries charged subscription costs, nobody made millions and people were happy. Those journals have embraced online publishing as a way to reduce costs and open access to the knowledge to an ever wider audience.

Open access publication still has costs, for example a recent paper I wrote cost 1600 Euros to publish in open access. That pays for the real costs of managing a completely online journal. BTW that money comes straight from our grants.

However some publishers recognised that there were millions to be made exploiting scientists as authors, reviewers and editors. Paying nothing for services and charging anyone and everyone as much as they could get away with, has proved to be a very profitable business model.

When Aaron Swartz set his laptop to download all those scientific papers from the MIT library system, he was effectively breaking open a box that should never have been locked. It’s doubtful those locking the box had any right to do so. I’m not sure if Aaron should be considered a hero but his actions highlighted something very wrong with the publishing of (mostly) government funded research. His isn’t the only action changing the way science is published and many would argue the changes would have come without him but I have to respect his actions and motives. It’s sad that he was persecuted for those actions.

I don’t think it’s a reasonable political excuse to not develop better laws but I just don’t know that I would do away with all police and prosecutorial leeway.

Yes. There's an important place for prosecutorial discretion, but it's not an excuse for not making better laws. Eric Schlosser's Reefer Madness offers a great examination of how the combination of prosecutorial discretion and sentencing gimmickry has distorted the American system. Basically, prosecutors do the sentencing by deciding which offence they'll prosecute.

His isn’t the only action changing the way science is published and many would argue the changes would have come without him but I have to respect his actions and motives. It’s sad that he was persecuted for those actions.

Yes. Both Lessig and danah boyd have have similarly noted that "his methods were not mine" in pursuit of the goals they shared.

Eric Schlosser’s Reefer Madness offers a great examination of how the combination of prosecutorial discretion and sentencing gimmickry has distorted the American system

Which is an abuse of discretion, to be clear, in the same way that the prosecutors in the Swartz case really should be considering just how much they fucked up here (and if there’s any justice in the world facing some professional/personal sanctions but.)

Also I am kinda wary of the idea of better laws — like, sure, you can stop outlawing stupid things, but I don’t, fundamentally, think that it is possible to write laws which don’t require huge amounts of discretion.

Which is an abuse of discretion, to be clear, in the same way that the prosecutors in the Swartz case really should be considering just how much they fucked up here (and if there’s any justice in the world facing some professional/personal sanctions but.)

My understanding is that in order to progress their careers prosecutors want big flashy cases which they can be sure of winning. As much to do with the way they are promoted and paid as whether they are decent human beings.

A drug possession conviction will not prevent you from being admitted as a lawyer.

Seriously? Every law student I know was terrified of being busted, because it would preclude them from the bar, so they said. Did this change (this was the 90s), or were they just wrong? If so, it was Law School itself telling them the porkies.

Seriously? Every law student I know was terrified of being busted, because it would preclude them from the bar, so they said. Did this change (this was the 90s), or were they just wrong? If so, it was Law School itself telling them the porkies.

It might get in the way of getting a job, but while you have to declare it when you apply, the the chance of something like that actually standing in your way is remote. The things to be be avoiding were dishonesty convictions.

I can't rule out that in the years before I was admitted these things were treated differently, but I'm confident of the time I was at university and since.

I was just saying on Twitter how much I enjoy posting things like the Crooks and Liars link on Facebook in order to feel some of my very conservative American relatives quietly imploding. (I am kind of an asshole. :) )

I can’t rule out that in the years before I was admitted these things were treated differently, but I’m confident of the time I was at university and since.

My dad had a law-student friend in the late 70s who’d been busted for possession (I’m not going to name him) and was worried about how it might stop him practising. I don’t think it’d happened before. He was very open about it when the time came, and was (after a little delay, I think) admitted to the bar, and got a job. I know of another case a little later as well. Not sure about subsequent careers though.

It might get in the way of getting a job, but while you have to declare it when you apply, the the chance of something like that actually standing in your way is remote. The things to be be avoiding were dishonesty convictions.

Declare convictions? Or having used illegal drugs at some point in your life or not? 'Cause the first is on record anyway, and the second seems like just the kind of thing it would be very tempting to lie about, encouraging dishonesty.

Declare convictions? Or having used illegal drugs at some point in your life or not? ’Cause the first is on record anyway, and the second seems like just the kind of thing it would be very tempting to lie about, encouraging dishonesty.

You had to declare convictions. Also any occasion on which you received diversion.

As Mike Joy found out the hard way, it’s getting increasingly difficult to hold a "free" and reasoned public debate without the risk of being labelled “PC”, “bleeding heart”, “latte liberal”, or words to that effect. Not too long ago, those anti-PC types who fling such labels complained of being labeled “rednecks” or “bigots”, and now they’ve become exactly what they hate.

Minor point... Swartz was a co-owner of Reddit - it was co-founded by Steve Huffman and Alexis Ohanian. They merged with Infogami, Swartz company a year or so later. Not to diminish his role or deeds before or after Reddit and I'm sure to most it seems like a pedantic point. But if we're all sad/angry about the death of a guy who 99% of people had never heard of last week we should at least do him the courtesy of getting one of his main contributions to the Internet correct.